Sanders v. Shell Oil Co., 81-3125
| Decision Date | 18 June 1982 |
| Docket Number | No. 81-3125,81-3125 |
| Citation | 678 F.2d 614 |
| Parties | 29 Fair Empl.Prac.Cas. 98, 29 Empl. Prac. Dec. P 32,824 James L. SANDERS, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John L. Dorsey, New Orleans, La., for plaintiff-appellant.
Alvin B. Gibson, Albert H. Hanemann, Jr., New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.
Between 1970 and 1973, ten plaintiffs filed eight suits against appellee Shell Oil Company, alleging that Shell had discriminated against them in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district judge below eventually consolidated the eight suits and certified them as a class action. The consolidated actions concluded with the entry of a consent decree on July 27, 1976.
The consent decree obligated Shell to perform several specific agreements. For example, Shell agreed to begin on-campus recruiting at ten named predominantly black universities, to advertise itself as an "equal opportunity employer," and to follow specified guidelines in the hiring and promotion of blacks and females. In addition to these explicit requirements, the decree contained more general paragraphs on such subjects as good faith compliance, modification procedures, and, most important to the dispute before us, Shell's commitment to equal opportunity employment. In Paragraph Three of the decree, Shell agreed not to "engage in any act or practice relating to employment opportunity which discriminates against any black or female." 1
The decree was to remain in force for five years, expiring on January 1, 1981. However, three crucial paragraphs of the decree created and defined the supervisory role that the district court was to play throughout and, if necessary, beyond this period. Paragraph Thirty-One declared that the court
retains jurisdiction of this action in order to assure compliance with the provisions of this Decree and if defendant fails to comply with any provisions of this Decree the Court may order such additional and further relief as may be necessary to assure compliance with the terms of this Decree.
Pursuant to Paragraph Thirty-Three, a proper party could "petition the court at any time before the expiration date of this Decree for an extension hereof on the ground that defendant has failed to comply with any of the terms of the Decree." However, Paragraph Twenty-Seven erected a procedural condition precedent to judicial enforcement or extension of the decree, as follows:
No petition for judicial enforcement of this Decree pursuant to Paragraph 31 or for an extension of the expiration date of this Decree pursuant to Paragraph 33 shall be permitted unless a proper party seeks same and has no less than 30 days before filing such petition:
(1) Notified defendant in writing of the intent to file such a petition, stating grounds therefor, and
(2) Conferred with representatives of defendant about the alleged violation or deficiency and attempted to resolve the matter.
On November 12, 1980, appellant Jesse James Marks filed a petition for extension of the decree, for an order to show cause why Shell should not be held in contempt of court, and for further relief. Marks was one of the ten original plaintiffs in the consolidated action and had served as attorney for the class. At the time of filing the petition for extension, Marks was representing five plaintiffs who had filed Title VII actions against Shell in the Eastern District of Louisiana. Marks did not fault Shell for violating the recruiting, hiring, or other requirements specified in the decree. Rather, he argued to the district court that the instances of discrimination alleged in the five new lawsuits constituted violations of Paragraph Three's general commitment (see n.1, supra) and necessitated an extension of the decree.
Shell's defense before the court was twofold. First, Shell argued that Paragraph Three's general ban against discrimination was merely "precatory or gratuitous" language, framed as a nebulous statement of public policy and not specifically enforceable. Shell maintained that the parties had not intended for the decree to serve as a means of adjudicating each and every instance of alleged discrimination for the following five years. Second, Shell insisted that, whatever the meaning of Paragraph Three, Marks had not properly invoked the Court's supervisory powers by complying with the notification requirements of Paragraph Twenty-Seven. According to Shell, Marks had never specified, prior to filing his petition for extension, the provision of the decree that Shell had allegedly violated, nor had he conferred with Shell in an attempt to resolve the matter.
The district court held on the merits that the decree should not be extended but also that Marks had not complied with the procedural requirements in petitioning for the extension.
Finally, the haggling over the petition for extension led to a controversy over discovery. Marks had served on Shell a request for an admission of the genuineness of twelve documents. The documents, mostly internal Shell memoranda, had been taken from Shell by a former employee, William Garibaldi, who was a plaintiff in one of the five pending lawsuits. Shell refused to answer the request for admissions and moved for a protective order, pursuant to Fed.R.Civ.P. 26(c), barring Marks' use or dissemination of what Shell alleged to be purloined and confidential information. A federal magistrate granted Shell's motion, placing the contested documents under seal and forbidding their use by Marks or anyone to whom he had communicated them. The district court affirmed the order on February 18, 1981, observing that the order did not bar any plaintiff from obtaining copies of the documents through normal discovery.
Marks appeals, contending that the district court erred in refusing to extend the decree and in approving the protective order. After reviewing the record and the arguments from each side, we affirm both decisions of the court below.
Our research indicates that we write on a clean slate in evaluating the district court's application of this general provision of an EEOC settlement decree. No other cases involving these or similar facts have been found.
The district court hewed a path somewhere between Marks' insistence that allegations of discrimination mandated an extension of the decree under Paragraph Three and Shell's assurance that Paragraph Three is merely precatory. After concluding that plaintiffs had not provided Shell with the notice required by Paragraph Twenty-Seven, the court discussed the substantive impact of Paragraph Three as follows:
We cannot accept plaintiffs' assertion that the individual acts of discrimination alleged in the four pending cases in other sections of this court violated Paragraph Three of the consent decree. That paragraph is merely a general statement in which defendant agrees not to discriminate against blacks and females. The obligations imposed by Paragraph Three are no different than those imposed on defendant under Title VII. Were we to interpret that paragraph to mean that any single allegation of discrimination was a potential violation of the consent decree for which an extension thereof could be sought, defendant would never be able to obtain an end to this court's scrutiny of its employment practices under the decree.
We find this a reasonable construction and application of the paragraph. In concluding that individual acts of discrimination do not automatically violate Paragraph Three, the court has not necessarily accepted Shell's invitation to render that paragraph meaningless. If confronted with allegations and evidence of a discriminatory policy that threatened to thwart the more specific objective of the decree, the court undoubtedly could, upon proper motion by an aggrieved party, rely on Paragraph Three to extend the supervisory period. However, such a determination inevitably rests within the discretion of the supervisory court. Paragraph Thirty-One's provision for retention of jurisdiction is, after all, permissive rather than mandatory: "(T)he Court may order such additional and further relief as may be necessary...." (Emphasis added). In opposition to this plain language, appellant can point to no section of the decree that requires the district court to extend the five-year period on receiving an allegation, or even a clear showing, of individual discriminatory acts.
Acceptance of appellant's position would turn every personnel decision by Shell into a potential subject for challenge under the decree. In effect, it would convert the district court into a separate Equal Employment Opportunity Commission (EEOC), not only empowered, but compelled to investigate and resolve every allegation of discrimination launched against Shell. It is not at all surprising that the court insisted that there be clear authority either in law or in the decree itself for so expansive an interpretation of its responsibilities under the decree. No such authority exists.
Moreover, the EEOC itself appears to have endorsed, at least tacitly, the court's position. The EEOC was a party to the original action and participated in negotiation of the consent decree. Marks had advised the EEOC of the pending allegations and his intention to move for an extension. In a letter of January 14, 1981, however, the attorney responsible for monitoring the decree for the EEOC informed the court that she had reviewed the documents connected with the petition and wished to inform the court that the EEOC would "not participate in this matter and (would) take...
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